Citation Nr: 0800023
Decision Date: 01/02/08 Archive Date: 01/09/08
DOCKET NO. 05-09 160 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to eligibility for Department of Veterans Affairs
(VA) nonservice-connected pension benefits.
ATTORNEY FOR THE BOARD
C. L. Krasinski, Counsel
INTRODUCTION
The appellant had missing status from September 1942 to
February 1944, recognized guerrilla service from February
1944 to July 1945, and Regular Philippine Army Service from
July 1945 to March 1946.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of an adverse determination in July 2004 of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of Philippines.
FINDINGS OF FACT
The appellant had missing status from September 1942 to
February 1944, recognized guerrilla service from February
1944 to July 1945, and Regular Philippine Army Service from
July 1945 to March 1946.
CONCLUSION OF LAW
The appellant did not have the requisite service to render
him basically eligible for VA pension. 38 U.S.C.A. §§ 101,
107, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203
(2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) codified in
part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part
at 38 C.F.R § 3.159, amended VA's duties to notify and to
assist a claimant in developing information and evidence
necessary to substantiate a claim.
The question before the Board is whether the appellant had
qualifying service to establish eligibility for nonservice-
connected pension benefits. The record includes service
department verification of the appellant's service. Because
qualifying service and how it may be established are governed
by law and regulations and because the service department's
certification is binding, the Board's review is limited to
interpreting the pertinent law and regulations.
Where as here, the interpretation of the law is dispositive
of the appeal, neither the duty to notify nor the duty to
assist provisions of the VCAA apply. Dela Cruz v. Principi,
15 Vet. App. 143, 149 (2001).
Analysis
The appellant seeks VA nonservice-connected pension benefits
and alleges recognized guerilla service.
The law authorizes the payment of a pension to a veteran of
wartime who has the requisite service and who is permanently
and totally disabled from nonservice-connected disability not
due to the veteran's own willful misconduct. 38 U.S.C.A. §§
1502, 1521.
"Veteran" means a person who served in the active military,
naval or air service and who was discharged or released under
conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38
C.F.R. § 3.1(d). "Veteran of any war" means any veteran who
served in the active military, naval or air service during a
period of war. 38 C.F.R. § 3.1(e). Service as a Philippine
Scout is included for pension, compensation, dependency and
indemnity compensation (DIC) and burial allowances, except
for those inducted between October 6, 1945 and June 30, 1947,
inclusive, which are included for compensation benefits, but
not for pension benefits. Service in the Commonwealth Army
of the Philippines from and after the dates and hours when
called into service of the Armed Forces of the United States
by orders issued from time to time by the General Officer,
U.S. Army, pursuant to the Military Order of the President of
the United States dated July 26, 1941, is included for
compensation benefits, but not for pension benefits. Service
department certified recognized guerrilla service, and
unrecognized guerrilla service under a recognized
commissioned officer (only if the person was a former member
of the United States Armed Forces (including the Philippine
Scouts), or the Commonwealth Army, prior to July 1, 1946) is
included for compensation benefits, but not for pension or
burial benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40(c) and
(d). Active service will be the period certified by the
service department. 38 C.F.R. § 3.9 (a) and (d).
For the purpose of establishing entitlement to VA benefits,
VA may accept evidence of service submitted by a claimant,
such as a DD Form 214, Certificate of Release or Discharge
from Active Duty, or original Certificate of Discharge,
without verification from the appropriate service department
under the following conditions: (1) the evidence is a
document issued by the service department; (2) the document
contains needed information as to length, time and character
of service; and (3) in the opinion of VA the document is
genuine and the information contained in it is accurate. 38
C.F.R. § 3.203(a). The United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999) has held that the Secretary
has lawfully promulgated regulations making service
department findings "binding on the VA for purposes of
establishing service in the U.S. Armed Forces." Duro v.
Derwinski, 2 Vet. App. 530, 532 (1992). In addition, service
department findings are binding on VA for purposes of
establishing service in the U.S. Armed Forces. Id.
In November 2006, the National Personnel Records Center
(NPRC) certified that the appellant had missing status from
September 1942 to February 1944, recognized guerrilla service
from February 1944 to July 1945, and Regular Philippine Army
Service from July 1945 to March 1946. This finding is
binding on VA for purposes of establishing service in the
United States Armed Forces. Spencer v. West, 13 Vet. App.
376 (2000). Given the applicable statutory and regulatory
provisions recited above and the facts of this case, the
Board finds that appellant does not meet the basic
eligibility requirements for VA pension benefits. Thus, the
appellant's claim lacks legal entitlement under the
applicable provisions. As the law is dispositive, the claim
must be denied because of the lack of legal entitlement under
the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).
ORDER
The appeal is denied.
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ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs